Citation Nr: 0007277
Decision Date: 03/17/00 Archive Date: 03/23/00
DOCKET NO. 94-01 948A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Determination of an initial rating for partial neuropathy,
left ulnar nerve, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
Howard M. Scott, Associate Counsel
INTRODUCTION
The veteran apparently had active service from September 1980
to July 1989.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a March 1993 decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan, which granted service connection for a
left wrist condition and assigned a noncompensable
evaluation. The veteran appealed that decision to the BVA.
The Board notes that the original claims file has been
misplaced, and numerous attempts to locate the file have been
unsuccessful. The RO has reconstructed the file to its best
ability and the case has been referred to the Board for
appellate review.
The veteran did not attend his scheduled Travel Board hearing
in November 1999.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. Partial neuropathy, left ulnar nerve, is manifested by
weakness in adduction, abduction and extension of the
fingers of the minor upper extremity, decreased sensation
in the third, fourth and fifth digits on the palmar and
dorsal surface of the hand to the wrist level, with tone
and coordination intact, symmetrical reflexes, and a good
grip, but more than moderate incomplete paralysis of the
ulnar nerve is not demonstrated.
CONCLUSION OF LAW
The schedular criteria for an evaluation in excess of 20
percent for partial neuropathy, left ulnar nerve, have not
been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.123, 4.124a Diagnostic Code 8516 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran essentially contends that the current
noncompensable evaluation for partial neuropathy, left ulnar
nerve, does not accurately reflect the severity of his
disability. He maintains that he suffers from pain, loss of
feeling, and periodic swelling in his left wrist, and states
that the wrist gives him "a lot of trouble in cold
weather." He states that he experiences numbness in his
ring and little finger and across the back of his hand.
The veteran is appealing the original assignment of a
disability evaluation following an award of service
connection, and, as such, the claim for the increased
evaluation is well-grounded. 38 U.S.C.A. § 5107(a); Shipwash
v. Brown, 8 Vet. App. 218, 224 (1995). Moreover, an appeal
from the initial assignment of a disability rating requires
consideration of the entire time period involved and
contemplates staged ratings, where warranted. Fenderson v.
West, 12 Vet. App. 119 (1999). After reviewing the record,
the Board finds that no further action is necessary to meet
the duty to assist the veteran with the development of
evidence in connection with his claim. 38 U.S.C.A.
§ 5107(a).
Service connection for a left wrist condition was granted by
the RO in March 1993 and a noncompensable evaluation was
apparently assigned, effective January 1993. This decision
was based on service medical records and on a February 1993
VA examination. As noted above in the introduction, the
veteran's claims folder has been misplaced and efforts to
locate the folder have proved unsuccessful. While the RO has
reconstructed the file, the March 1993 decision, the
veteran's DD-214 and his service medical records, and the
February 1993 VA examination report remain missing.
While the originals remain missing, the Board notes that a
January 1994 Statement of the Case (SOC) contains a detailed
summary of both the service medical records and the VA
examination report. According to the SOC, the service
medical records indicated that the veteran sustained a
laceration of the left forearm while working on a grinder in
January 1981. There was no tendon or nerve damage and the
laceration was sutured. The veteran also received a minor
cut to the posterior left hand at the base of the fifth
finger in December 1985. The SOC further reported that at
his VA examination, the veteran complained of sensitivity in
the area of the laceration on the ulnar side of the wrist.
The examiner reportedly described a well healed scar on the
ulnar aspect of the left wrist, which was sensitive to touch
in a small area at the ulnar-carpal joints on the volar
surface, normal circulation and motor strength, and no muscle
atrophy or weakness. Dorsiflexion of the wrist was to 68
degrees, palmar flexion was to 60 degrees, ulnar deviation
was to 20 degrees, and radial deviation was to 24 degrees.
X-rays of the left wrist were normal.
In January 1994, based on the above evidence, the RO
increased the evaluation for the veteran's left wrist
condition to 10 percent.
VA treatment records, dated from December 1994 to February
1995, reflect that the veteran was seen with complaints
relating to his service-connected left ulnar disability. In
December 1994, the veteran complained of a two to three week
history of a lump, variously described as being in his left
hand or left forearm, with pain, unrelieved by Motrin. "It
always bothers me in winter weather," he said. He also
reported that he did a lot of work with his hands. He denied
any recent falls. The forearm was slightly swollen, there
was no erythema or bruising, and he had a good grip. The
assessment was soft tissue swelling, distal left forearm.
Another entry that same month noted slight swelling with
minimal tenderness. X-rays were normal. He was treated with
a brace of the left wrist. The assessment was tendonitis.
In January 1995 the assessment was chronic neuralgia, left
hand. In February 1995, the assessment was chronic
pain/paresthesia, left hand.
The veteran was administered another VA examination in
October 1998. The examination report notes that the veteran
complained of both cramps and intermittent swelling in his
left hand, predominantly upon use, would usually occur after
using the hand for ten minutes, but occasionally occurring
spontaneously. The veteran further complained of numbness in
the third, fourth, and fifth digits of the left hand, and
weakness in grip of the left hand. The veteran was noted to
be right-handed. Motor strength was noted to be normal,
except for "a 25 percent weakness in abduction and adduction
of the fingers of the left hand, and extension of these
fingers at the interphalangeal joints." Tone and
coordination were noted to be intact, and reflexes were
symmetrical. Sensory examination was noted to be intact with
the exception of the left hand where there was decreased
sensation in the third, fourth and fifth digits on the palmar
and dorsal surface of the hand to the wrist level. The
examiner's diagnosis was neuropathy, partial left ulnar
nerve.
Based on the results of this examination, the RO, in February
1999, increased the evaluation for the veteran's disability
to 20 percent, effective January 1993. In addition, the RO
re-characterized the disability as neuropathy, partial, left
ulnar nerve.
The Board notes that a comparison of the findings from the
February 1993 VA examination, as reported in the January 1994
SOC, and the October 1998 examination indicates that the more
recent examination reveals more severe symptoms than were
present at the time of the earlier, missing examination
report. Thus reliance on the more recent examination does
not deprive the veteran of a higher evaluation that he would
have received but for the misplacement of the earlier
examination report. Therefore, the Board finds that the
veteran is not prejudiced by this approach, and by assigning
the same rating for the entire period under review,
Fenderson, 12 Vet. App. 119, notwithstanding.
Disability evaluations are based on the comparison of
clinical findings with the relevant schedular criteria. 38
U.S.C.A. § 1155. Where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7
(1999).
Under 38 C.F.R. § 4.124a, Diagnostic Code 8516, a 50 percent
evaluation is warranted for complete paralysis of the ulnar
nerve in the minor upper extremity, manifested by "griffin
claw" deformity due to flexor contraction of the ring and
little fingers, atrophy very marked in dorsal interspace and
thenar and hypothenar eminences; loss of extension of ring
and little fingers cannot spread the fingers (or reverse),
cannot adduct the thumb; flexion of wrist weakened. A 30
percent evaluation is warranted for severe incomplete
paralysis of the ulnar nerve in the minor extremity, and a 20
percent evaluation is warranted for moderate incomplete
paralysis of the ulnar nerve in the minor extremity. The
recent VA examination report indicated that the veteran is
right handed. His left upper extremity is therefore
considered the minor extremity for VA purposes.
Following a review of all the relevant and available
evidence, the Board finds that the preponderance of the
evidence indicates that the veteran's neuropathy, partial,
left ulnar nerve, is manifested by no more than moderate
incomplete paralysis of the ulnar nerve of the minor upper
extremity. While the veteran has weakness in adduction,
abduction and extension of the fingers of the left hand, with
decreased sensation in the third, fourth and fifth digits on
the palmar and dorsal surface of the hand to the wrist level,
his tone and coordination were noted to be intact, and
reflexes were symmetrical. In addition, the December 1994 VA
treatment records noted that the veteran had a good grip.
Furthermore, neither the examination report nor the treatment
records described the veteran's disability as more than
moderate in severity. In view of these findings, the Board
finds that the preponderance of the evidence is against an
evaluation in excess of 20 percent for partial neuropathy,
left ulnar nerve. Therefore, the veteran's claim for an
evaluation in excess of 20 percent is denied.
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
An evaluation in excess of 20 percent for partial neuropathy,
left ulnar nerve, is denied.
MILO H. HAWLEY
Acting Member, Board of Veterans' Appeals